EXHIBIT 10.47
AMENDMENT AND RESTATEMENT AGREEMENT dated as of June
28, 2002, among ADVANCE STORES COMPANY, INCORPORATED, a
Virginia corporation (the "Borrower"), ADVANCE AUTO PARTS,
INC., a Delaware corporation ("Holdings"), the Lenders party
hereto and JPMORGAN CHASE BANK, as Administrative Agent,
under the Credit Agreement dated as of November 28, 2001,
among the Borrower, Holdings, the lenders referred to
therein and the Administrative Agent, as in effect on the
date hereof (the "Original Credit Agreement").
WHEREAS, Holdings and the Borrower have requested, and the
Required Restatement Lenders and the Administrative Agent have agreed, upon the
terms and subject to the conditions set forth herein, that (a) the Tranche C
Lenders extend credit in the form of Tranche C Term Loans on the Restatement
Effective Date, in an aggregate principal amount equal to $250,000,000 and (b)
the Original Credit Agreement be amended and restated as provided herein;
NOW, THEREFORE, Holdings, the Borrower, the Required Restatement
Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Restated Credit
Agreement referred to below. As used in this Agreement, "Required Restatement
Lenders" means, at any time, (i) Lenders under the Original Credit Agreement
having Revolving Exposures, Tranche A Term Loans, Tranche B Term Loans and
unused Revolving Commitments representing more than 50% of the sum of the total
Revolving Exposures, outstanding Tranche A Term Loans, outstanding Tranche B
Term Loans and unused Revolving Commitments at such time, (ii) Lenders under the
Original Credit Agreement having Tranche A Term Loans representing more than 50%
of the sum of the outstanding Tranche A Term Loans at such time and (iii) each
of the Tranche C Lenders set forth on Schedule 1 hereto.
SECTION 2. Restatement Effective Date. (a) The transactions
provided for in Sections 3 through 5 hereof shall be consummated at a closing to
be held on the Restatement Effective Date at the offices of Cravath, Swaine &
Moore, or at such other time and place as the parties hereto shall agree upon.
(b) The "Restatement Effective Date" shall be specified by the
Borrower, and shall be a date not later than July 1, 2002, as of which all the
conditions set forth or referred to in Section 6 hereof shall have been
satisfied. The Borrower shall give not less than one Business Day's written
notice proposing a date as the Restatement Effective
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Date to the Administrative Agent, which shall send copies of such notice to the
Lenders. This Agreement shall terminate at 5:00 p.m., New York City time, on
July 1, 2002, if the Restatement Effective Date shall not have occurred at or
prior to such time.
SECTION 3. Tranche C Term Loans; Prepayment of Tranche B Term
Loans. (a) Subject to the terms and conditions set forth herein, each Tranche C
Lender agrees to make a Tranche C Term Loan to the Borrower on the Restatement
Effective Date in a principal amount equal to the Tranche C Term Loan Commitment
set forth for such Tranche C Lender on Schedule 1 hereto. The Tranche C Term
Loans shall be made on the Restatement Effective Date as ABR Borrowings. The
Required Restatement Lenders hereby waive the requirements of Section 6.01 of
the Original Credit Agreement to the extent, but only to the extent, necessary
to permit the Borrower to incur the Tranche C Term Loans and make Borrowings
thereunder on the Restatement Effective Date.
(b) The Borrower hereby irrevocably directs the Administrative
Agent pursuant to Section 2.11(a) of the Original Credit Agreement to apply all
the proceeds of the Tranche C Term Loans, together with the Borrower's payment
of $14,548,667.77 to the Administrative Agent by intrabank transfer of
immediately available funds on the Restatement Effective Date (the "Restatement
Prepayment"), in each case, immediately upon the receipt thereof to prepay all
the outstanding principal of the Tranche B Term Loans. The Borrower also agrees
to pay to the Administrative Agent on the Restatement Effective Date by
intrabank transfer of immediately available funds, an amount necessary to pay
all accrued interest, fees and any other amounts owing in respect of the Tranche
B Term Loans as of such date.
(c) Unless the Administrative Agent shall have received notice
from a Tranche C Lender prior to the Restatement Effective Date that such
Tranche C Lender will not make available to the Administrative Agent such
Tranche C Lender's share of such Tranche C Borrowing, the Administrative Agent
may assume that such Tranche C Lender has made such share available on such date
in accordance with this Section. If any Tranche C Lender shall default in the
payment of any amount due from it under this Section, then the applicable
Tranche C Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such defaulted amount (to the extent so advanced by
the Administrative Agent on behalf of such defaulting Tranche C Lender) to the
Administrative Agent, together with interest on such amount at the interest rate
applicable to ABR Loans from the Restatement Effective Date to the date of
payment. Upon any such payment by the Borrower, the Borrower shall have the
right, at the defaulting Tranche C Lender's expense, upon notice to the
defaulting Tranche C Lender and to the Administrative Agent, to require such
defaulting Tranche C Lender to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04 of the
Restated Credit Agreement) all its interests, rights and obligations under the
Restated Credit Agreement to another financial institution which shall assume
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such interests, rights and obligations; provided that (i) no such assignment
shall conflict with any law, rule or regulation or order of any Governmental
Authority and (ii) the assignee shall pay to the defaulting Tranche C Lender or
the Administrative Agent (as applicable), in immediately available funds on the
date of such assignment, the outstanding principal of and interest accrued to
the date of payment on the Tranche C Term Loans made by such defaulting Tranche
C Lender (or advanced by the Administrative Agent on its behalf, as applicable)
under the Restated Credit Agreement, if any, and all other amounts accrued for
such defaulting Tranche C Lender's (or, if applicable, the Administrative
Agent's) account or owed to it under the Restated Credit Agreement in respect of
such Tranche C Term Loans.
SECTION 4. Amendment and Restatement of the Original Credit
Agreement; Loans and Letters of Credit. (a) Effective immediately after the
prepayment of the Tranche B Term Loans under Section 3 above, the Original
Credit Agreement is hereby amended and restated to read in its entirety as set
forth in Exhibit A hereto (the "Restated Credit Agreement"), and the
Administrative Agent is hereby directed by the Required Restatement Lenders to
enter into such Loan Documents and to take such other actions as may be required
to give effect to the transactions contemplated hereby. From and after the
effectiveness of such amendment and restatement, the terms "Agreement", "this
Agreement", "herein", "hereinafter", "hereto", "hereof" and words of similar
import, as used in the Restated Credit Agreement, shall, unless the context
otherwise requires, refer to the Original Credit Agreement as amended and
restated in the form of the Restated Credit Agreement, and the term "Credit
Agreement", as used in the other Loan Documents, shall mean the Restated Credit
Agreement.
(b) All Tranche A Term Loans, Revolving Loans, Swingline Loans
and Letters of Credit outstanding under the Original Credit Agreement on the
Restatement Effective Date shall continue to be outstanding under the Restated
Credit Agreement and the terms of the Restated Credit Agreement will govern the
rights of the Lenders and the Issuing Bank with respect thereto.
SECTION 5. Waiver. The Tranche A Lenders party hereto, on behalf
of all Tranche A Lenders, hereby waive the provisions under the Original Credit
Agreement with respect to the pro rata allocation of voluntary prepayments of
Term Borrowings thereunder and consent to the application of the proceeds of the
Tranche C Term Loans and the Restatement Prepayment as provided in Section 3.
The Required Restatement Lenders hereby consent to the waiver contained in this
Section 5.
SECTION 6. Conditions. The consummation of the transactions set
forth in Sections 3 through 5 of this Agreement shall be subject to the
satisfaction of the following conditions precedent:
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(a) The Administrative Agent (or its counsel) shall have received
from Holdings, the Borrower and the Required Restatement Lenders either (i)
a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the Restatement Effective Date) of each of (i) Riordan & McKinzie,
counsel for the Loan Parties, substantially in the form of Exhibit B-1,
(ii) Flippin Densmore Morse Rutherford & Jessee, Virginia counsel for the
Loan Parties, substantially in the form of Exhibit B-2, (iii) Greenberg
Traurig, LLP, Florida counsel for the Loan Parties, substantially in the
form of Exhibit B-3 and (iv) Bingham Dana, special New York counsel for the
Loan Parties, substantially in the form of Exhibit B-4, and, in the case of
each such opinion required by this paragraph, covering such other matters
relating to the Loan Parties, the Loan Documents or the Restatement
Transactions as the Required Restatement Lenders shall reasonably request.
Holdings and the Borrower hereby request such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Restatement Transactions and any other
legal matters relating to the Loan Parties, the Loan Documents or the
Restatement Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Restatement Effective Date and signed by the President, a Vice
President or a Financial Officer of each of Holdings and the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and
(b) of Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Restatement Effective
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including fees, charges and disbursements of
counsel) required to be reimbursed or paid by any Loan Party hereunder or
under any other Loan Document.
(f) The Collateral Agent shall have received (i) all documents
and instruments, including Uniform Commercial Code financing statements,
required by law or reasonably requested by the Collateral Agent to be
filed, registered or
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recorded to create or perfect the Liens intended to be created under the
Security Agreement after giving effect to the Restatement Transactions,
(ii) a completed Perfection Certificate dated the Restatement Effective
Date and signed by an executive officer or Financial Officer of the
Borrower and (iii) all documents and instruments necessary to create or
perfect the Liens intended to be created under the Pledge Agreement after
giving effect to the Restatement Transactions.
(g) The Collateral Agent shall have received (i) to the extent
requested by the Collateral Agent, amendments to each Mortgage executed in
connection with the Original Credit Agreement providing that the Tranche C
Term Loans (in addition to the other Obligations) shall be secured by a
Lien on each Mortgaged Property, signed on behalf of the record owner of
such Mortgaged Property and (ii) a policy or policies of title insurance or
a title endorsement to an existing title insurance policy, issued by a
nationally recognized title insurance company, insuring the Lien of each
such Mortgage as a valid first Lien on the Mortgaged Property described
therein, free of any other Liens except as permitted by the Restated Credit
Agreement, together with such endorsements, coinsurance and reinsurance as
the Collateral Agent or the Required Restatement Lenders may reasonably
request.
(h) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 of the Restated Credit Agreement and
the Security Documents is in effect.
(i) A Reaffirmation Agreement substantially in the form of
Exhibit C hereto shall have been delivered by each party thereto.
The Administrative Agent shall notify the Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the consummation of the transactions set forth in
Sections 3 through 5 of this Agreement and the obligations of the Tranche C
Lenders to make Tranche C Term Loans hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section 7
below) at or prior to 5:00 p.m., New York City time, on July 1, 2002 (and, in
the event such conditions are not so satisfied or waived, the Tranche C
Commitments shall terminate at such time).
SECTION 7. Effectiveness; Counterparts; Amendments; Fees. (a)
This Agreement shall become effective when copies hereof which, when taken
together, bear the signatures of Holdings, the Borrower, the Administrative
Agent and the Required Restatement Lenders shall have been received by the
Administrative Agent. This Agreement may not be amended nor may any provision
hereof be waived except pursuant to a writing signed by Holdings, the Borrower,
the Administrative Agent and the Required Restatement Lenders. This Agreement
may be executed in two or more
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counterparts, each of which shall constitute an original but all of which when
taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
(b) In consideration of the agreements of the Required
Restatement Lenders contained in this Agreement, the Borrower agrees to pay to
the Administrative Agent, for the account of each Lender that delivers an
executed counterpart of this Agreement at or prior to 5:00 p.m. on June 26,
2002, a fee equal to 0.10% of the sum of such Lender's Revolving Commitment and
outstanding Term Loans, in each case as of the date immediately prior to the
Restatement Effective Date; provided that such fee shall not be payable unless
and until this Agreement becomes effective as provided in Sections 6 and 7(a)
hereof.
SECTION 8. No Novation. This Agreement shall not extinguish the
Loans outstanding under the Original Credit Agreement. Nothing herein contained
shall be construed as a substitution or novation of the Loans outstanding under
the Original Credit Agreement, which shall remain outstanding after the
Restatement Effective Date as modified hereby. Notwithstanding any provision of
this Agreement, the provisions of Sections 2.15, 2.16, 2.17 and 9.03 of the
Original Credit Agreement as in effect immediately prior to the Restatement
Effective Date will continue to be effective as to all matters arising out of or
in any way related to facts or events existing or occurring prior to the
Restatement Effective Date.
SECTION 9. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Restated Credit Agreement
or, in the case of a notice to any Tranche B Lender, in accordance with Section
9.01 of the Original Credit Agreement.
SECTION 10. Applicable Law; Waiver of Jury Trial. (A) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10
OF THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL
HEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first written above.
ADVANCE AUTO PARTS, INC.,
by
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Name:
Title:
ADVANCE STORES COMPANY,
INCORPORATED,
by
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Name:
Title:
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
---------------------------
Name:
Title:
SIGNATURE PAGE TO
AMENDMENT AND
RESTATEMENT AGREEMENT
DATED AS OF JUNE 28, 2002
To Approve Amendment
and Restatement Agreement:
Name of Institution ------------------------------
by
---------------------------
Name:
Title: